Attorneys for the House of Representatives concluded this week that the House Oversight and Government Reform Committee has legal standing to pursue contempt charges against former Internal Revenue Service official Lois Lerner.
The determination, outlined in a 22-page memo from the House’s general counsel’s office to committee chairman Darrell Issa (R-Calif.), contradicts claims from the panel’s top Democrat, Elijah Cummings (Md.), who has said Republicans effectively killed any chance of contempt proceedings by failing to take the constitutionally required steps required for such efforts.
Lerner, who headed the IRS division that reviews tax-exemption applications, has repeatedly invoked her Fifth Amendment right instead of testifying about the agency targeting certain nonprofit advocacy groups for extra scrutiny based on their names and policy positions.
Cummings explained his position in a March 12 letter to House Speaker John Boehner, citing two independent legal experts who said Republicans cannot pursue contempt charges because Issa did not overrule Lerner’s Fifth Amendment assertion or clearly direct her to answer the committee’s questions.
Issa issued a response the next day saying Cummings was wrong on the facts and the law. “Contrary to your insistence, the courts do not require the invocation by the committee of certain magic words,” he said in a letter to the Democrat.
The general counsel’s office largely agreed with Issa, concluding that the committee had satisfied the constitutional requirements for pursuing contempt charges.
According to the memo, the panel effectively overruled Lerner’s Fifth Amendment assertion when it determined — in a party-line vote — that she had waived her right to not testify by declaring innocence at a hearing last year. It also noted that the committee advised Lerner that she could face contempt charges if she refused to answer questions.
Lerner’s attorney, William Taylor, disagreed with the counsel’s determination. “There is not a court in the country which will hold that Ms. Lerner waived her Fifth Amendment rights or that she refused to comply with an order,” he said.
Taylor agreed with Cummings’ assessment, saying: “No witness can be held in contempt unless the chairman of the committee specifically orders him to testify. Chairman Issa said that if [Lerner] continued to assert her privilege, the committee ‘may may proceed to consider whether she will be held in contempt.’ He did not order her to testify and advise her that if she did not she would be held in contempt.”
Cummings said in a statement on Wednesday that the counsel memo conflicts with the opinions he previously cited from a former House counsel and a legal expert with the nonpartisan Congressional Research Service. “I have great respect for the House Counsel’s office and the difficult job they do, and it is certainly no surprise that they are now attempting to defend the actions of their client, Chairman Issa,” he said.
Also on Wednesday, Cummings released opinions from 25 legal experts who support his stance, including another former House counsel and three former Supreme Court clerks.
Cummings said in his statement that Issa should have accepted an offer from Lerner to consider testifying at a hearing this month if the chairman would delay the event for one week because her attorney was expecting to travel during the originally scheduled time.
“It is a shame that Chairman Issa rejected a simple one-week delay in obtaining Ms. Lerner’s testimony, instead choosing to move forward with these partisan and deficient contempt proceedings,” Cummings said.
The hearing took place as originally planned on March 5, but it turned into a debacle after Lerner refused to testify and Issa abruptly adjourned the hearing without input from Democrats, in addition to ordering Cummings’ microphone cut off as the Democrat raised objections to ending the proceeding.
Lerner retired from the IRS in September. An internal review board had determined that the agency should remove her from office for “neglect of duties,” according to a statement at the time from Rep. Sander Levin (D-Mich.), the ranking member of the House Ways and Means Committee.
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